MALINOWSKI v. ASTRUE
Filing
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MEMORANDUM OPINION AND ORDER: IT IS HEREBY ORDERED that the 8 Plaintiff's Motion for Summary Judgment is DENIED and the 10 Defendant's Motion for Summary Judgment is GRANTED. JUDGMENT is hereby entered in favor of Defendant, Michael J. Astrue, Commissioner of Social Security, and against Plaintiff, Robert D. Malinowski. Signed by Judge Sean J. McLaughlin on 7/26/2012. (rlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ROBERT D. MALINOWSKI,
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Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Civil Action No. 11-115 Erie
MEMORANDUM OPINION
McLAUGHLIN, SEAN J., District Judge.
I.
INTRODUCTION
Robert D. Malinowski (“Plaintiff”), commenced the instant action pursuant to 42 U.S.C.
§ 405(g), seeking judicial review of the final decision of the Commissioner of Social Security
(“Commissioner”), denying his claims for disability insurance benefits (“DIB”) and
supplemental security income (“SSI) under Titles II and XVI of the Social Security Act, 42
U.S.C. § 401, et seq. and § 1381 et seq. Plaintiff filed his applications on January 12, 2007,
alleging disability since September 24, 2006 due to being a “slow learner” and “neurotic
excoriations (sores on arms)” (AR 145-153; 195)1 His applications were denied (AR 133-141),
and following a hearing held on February 11, 2009 (AR 30-91), the administrative law judge
(“ALJ”) issued his decision denying benefits to Plaintiff on July 21, 2009 (AR 21-29).
Plaintiff’s request for review by the Appeals Council was subsequently denied (AR 1-6),
rendering the Commissioner’s decision final under 42 U.S.C. § 405(g). The instant action
challenges the ALJ’s decision. Presently pending before the Court are the parties’ cross-motions
for summary judgment. For the reasons that follow, the Plaintiff’s motion will be denied and the
Commissioner’s motion will be granted.
1
References to the administrative record [ECF No. 4], will be designated by the citation “(AR ___)”.
1
II.
BACKGROUND
Plaintiff was 27 years old on the date of the ALJ’s decision, and has a high school
education (AR 28). He was previously employed as a maintenance worker, dishwasher and
convenience store clerk (AR 196).
Medical History
Plaintiff was treated by David Dietman, M.D., a dermatologist, for neurotic excoriation2
of his arms, hands and right leg beginning on June 21, 2005 (AR 400). Plaintiff saw Dr.
Dietman on September 26, 2006, two weeks before his alleged disability onset date, who
reported that the skin on his arms and legs was stable, but his right hand itched (AR 406). He
was prescribed lotion and cream and was to return for follow-up in six months (AR 406).
On January 8, 2007, Dr. Dietman completed an Employability Assessment Form for the
Department of Public Welfare (“DPW”), and checked a box stating that the Plaintiff was
“permanently disabled” due to a primary diagnosis of neurotic excoriations (AR 425). As a
secondary diagnosis, Dr. Dietman wrote: “pt. has IQ 79 – stress of trying to work causes
frustration – leads to excoriations” (AR 425). On June 14, 2007, Dr. Dietman authored a letter
stating that he treated Plaintiff for neurotic excoriations affecting his forearms, arms, and dorsal
hands, and at times, his legs (AR 474). He further stated that Plaintiff’s condition was chronic
but that he responded to medications (AR 474). On December 10, 2007, Dr. Dietman completed
another DPW form stating Plaintiff was “permanently disabled” for the same reasons set forth in
the January 2007 form (AR 473).
On March 20, 2007, Steven Reilly, M.A., performed an intellectual evaluation pursuant
to a request from the Commissioner (AR 427). Plaintiff reported that he lived with his brother
(AR 427). He stated he was able to perform domestic chores and manage his own finances (AR
427). He denied any history of mental health treatment (AR 427). Plaintiff obtained a verbal IQ
score of 88, a performance IQ score of 81, and a full scale IQ score of 84 (AR 427). Dr. Reilly
noted that “little prompting was necessary” during testing, and he considered the results valid
2
“Neurotic excoriation” is defined as “a self-induced skin lesion, inflicted by the fingernails or other physical
means.” Dorland’s Illustrated Medical Dictionary 593 (27th ed. 1988).
2
(AR 427). Dr. Reilly observed “mild” signs of pace and coordination difficulties during testing,
but there were few signs of concentration or distraction difficulties (AR 427). Dr. Reilly found
Plaintiff’s cognitive abilities fell within the low average range of intellectual ability (AR 427).
He concluded that Plaintiff was not limited or only slightly limited in all functional categories,
except he was moderately limited in his ability to carry out detailed instructions (AR 428).
On April 2, 2007, Sanford Golin, Ph.D., a state agency reviewing psychologist, reviewed
the medical evidence of record and found that Plaintiff had a low average IQ, but concluded that
he had only mild limitations in his activities of daily living, social functioning, and in
maintaining concentration, persistence or pace (AR 430-442).
On February 4, 2008, Plaintiff underwent a psychiatric evaluation performed by Matthew
DeJohn, M.D. at Stairways Behavioral Health (AR 450-453). Plaintiff reported a history of
borderline intellectual functioning (AR 450). He also reported a history of skin excoriations (AR
450). Plaintiff’s mother reported that Plaintiff had been placed on Ritalin as a child for possible
attention deficit hyperactivity disorder, but had not been on it for years (AR 450). Plaintiff
indicated that he was asked to leave his restaurant job because he was having trouble focusing on
tasks, but had kept his previous job for four and one half years (AR 450-451). He denied having
any psychological symptoms, and reported no attention or concentration problems (AR 450).
Plaintiff reported that he was living independently with his brother and was looking forward to
finding employment (AR 451). Plaintiff stated he was “doing fairly well” and Dr. DeJohn noted
that Plaintiff was not interested in medication (AR 451).
Dr. DeJohn found Plaintiff to be pleasant, cooperative and appropriately groomed (AR
452). His thought process was somewhat superficial, but otherwise linear and logical, and his
responses were “very relevant” (AR 452). Dr. DeJohn also found that his memory and judgment
were intact, and his insight was “fair” (AR 452). He concluded that Plaintiff “appear[ed] to be
functioning quite well” and did “not appear significantly impaired in any manner” (AR 452). He
noted that Plaintiff’s skin excoriations could “theoretically” be stress related, but that Plaintiff
was not reporting any stress (AR 452). He observed that Plaintiff’s fingernails were
“significantly long” and suggested that he cut them (AR 450; 452). Dr. DeJohn diagnosed
3
Plaintiff with a learning disability by history; attention deficit hyperactivity disorder by history;
and “borderline intellectual function versus low normal IQ” (AR 452). He was assigned a
Global Assessment of Functioning (“GAF”) score of 65 (AR 452). 3
Plaintiff returned for two counseling sessions in February and March 2008 (AR 455-457).
At both sessions, he denied any mental health symptoms and was reportedly “good natured for
the most part” (AR 455). It was observed that Plaintiff had cut his fingernails and his
excoriations had improved (AR 457).
On February 12, 2008, Plaintiff underwent a psychological evaluation performed by
Byron Hillin, Ph.D through the Office of Vocational Rehabilitation to be utilized for future
vocational planning and adjunct services (AR 460-471). Dr. Hillin reported that Plaintiff was
fully cooperative, his answers appeared truthful, and he “gave good effort at psychological
testing” (AR 460). Plaintiff reported that the longest he was employed was for almost five years
at Gannon University, but he was terminated for allegedly inappropriately touching a girl (AR
461). He indicated that he enjoyed that job and worked approximately twenty to thirty hours per
week (AR 462). Plaintiff reported that he lived with his brother, helped with the chores, enjoyed
reading and watching television, and was able to ride the bus (AR 462). He saw his parents on a
daily basis, and depended upon them for advice, social help and guidance (AR 462).
Dr. Hillin reported that Plaintiff obtained a verbal IQ score of 80, a performance IQ score
of 80, and a full scale IQ score of 78 (AR 464). He noted, however, that Plaintiff was familiar
with the multiple subtests and his scores may have been artificially inflated due to “test-retest
practice effects” (AR 464). Plaintiff had fair attention, concentration, and memory, but his social
judgment and reasoning were “low” (AR 464-465). His thoughts were relevant, coherent and
3
The Global Assessment of Functioning Scale (“GAF”) assesses an individual's psychological, social and
occupational functioning with a score of 1 being the lowest and a score of 100 being the highest. The GAF score
considers “psychological, social, and occupational functioning on a hypothetical continuum of mental healthillness.” American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR)
34 (4th ed. 2000). An individual with a GAF score of 61 to 70 may have “[s]ome mild symptoms (e.g., depressed
mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy,
or theft within the household), but generally functioning pretty well, has some meaningful interpersonal
relationships.” Id.
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goal directed (AR 464). Dr. Hillin found Plaintiff was literate, but that he had difficulty with
abstract and complex meaning (AR 464). He noted that Plaintiff had an “elevated level of social
interaction” during testing and needed redirection (AR 465).
Dr. Hillin found Plaintiff had “symptoms of Asperger’s Syndrome”, including difficulty
reading social cues, developmental coordination difficulties, and compulsive scratching (AR
466). He also found his general intellect to be within the borderline range (AR 466). Plaintiff
had mild difficulties with reading and comprehension (AR 466). Dr. Hillin diagnosed him with
Asperger’s Disorder and Borderline intellect, and assigned him a GAF score of 70 (AR 456).
Dr. Hillin found that Plaintiff worked better in an environment where there were multiple
workers to help him as needed (AR 466). He recommended continued employment in the food
service or cleaning industry, but believed his tolerance for the demands and stress of full time
employment would be poor (AR 467).
Employment history
Plaintiff was employed as a cleaner by Gannon University for four years until September
24, 2006 (AR 203). Records from the Employment Opportunities Center reveal that Plaintiff
worked at a restaurant and convenience store after his alleged disability onset date (AR 312388). Plaintiff was a cleaner/dishwasher at the Colony Pub and Grille, and an employment
specialist assigned to Plaintiff reported that while he had some difficulty with the cleaning aspect
of the job, he “remembered the majority of what he was supposed to do” (AR 320; 322; 330).
Plaintiff was able to successfully perform the dishwasher duties without assistance, and was able
to keep up a “good pace” (AR 320; 322; 326; 330). The Colony Pub ultimately was dissatisfied
with Plaintiff’s job performance and he was terminated (AR 341). It was recommended that for
future placements, Plaintiff would benefit from a less active, less stimulating work environment
(AR 317).
Plaintiff also worked at a Country Fair convenience store, and his employment specialist
noted that he “moved from task to task without any problems and didn’t need help deciding
where to go or what to do next” (AR 355). It was also noted that Plaintiff was “get[ting] better
each day he worked” (AR 355). He was subsequently terminated, however, due to a problem
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with the quality of his work in some areas, for being too talkative, and because a customer
complained that Plaintiff made her feel “uncomfortable” (AR 345). Plaintiff’s employment
specialist recommended classes to improve his “socialization skills” in order to be successful in
the work force (AR 343).
Administrative hearing
Plaintiff testified that he last worked between August and September of 2008 at the
Country Fair but claimed he was terminated due to an inability to keep up with the work (AR 3435). He also worked at the Colony Pub and Grill for seven months until he was terminated for
the same reason (AR 35-36). Plaintiff stated that he lived with his brother two doors down from
his parents’ house, and that his mother helped him with his mail and laundry (AR 38-40). He
indicated that he was able to perform household chores, watch television and he enjoyed reading
comic books, but had some difficulty reading and understanding words (AR 37; 40). He was
active in the Special Olympics, including bowling and track events (AR 36-37). Plaintiff
testified that he liked to work and would be able to perform an assembly line type job if the tasks
were easy to perform (AR 37-38).
Andrew Vitale, the employment specialist assigned to Plaintiff, testified that he was
employed by the Gertrude Barber Center, an institute dedicated to helping those with special
needs (AR 53). Mr. Vitale testified that Plaintiff understood his job duties, but performed them
in the wrong order and that he needed constant redirection (AR 48; 58). Plaintiff was also “very
sociable” and became easily distracted by coworkers and customers (AR 48). Mr. Vitale also
testified that Plaintiff would function best in a work environment where he was in an isolated
setting with enough to keep him busy, but not at such a slow pace that he would become bored
(AR 52-53).
Plaintiff’s father, Andrew Malinowski, testified that Plaintiff had always been in special
education classes (AR 64). Mr. Malinowski indicated that Plaintiff would have difficulty
focusing on a job with multiple tasks, and had some difficulty with his coordination and memory
(AR 64; 68). Mr. Malinowski indicated that Plaintiff socialized very little with others, confining
his activities to those associated with Special Olympics and his family (AR 66).
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The vocational expert was asked to assume an individual of the same age, education and
work experience as Plaintiff, who was able to perform work at all exertional levels, but was
limited to unskilled work without production lines and with minimal contact with the public (AR
70-71; 76-77). The vocational expert testified that such an individual could perform the
unskilled positions of a hand packer, laundry folder, assembler and dishwasher (AR 71-72; 78).
Following the hearing, the ALJ issued a written decision finding that the Plaintiff was not
entitled to a period of disability, DIB or SSI within the meaning of the Act (AR 21-29). His
request for an appeal with the Appeals Council was denied rendering the ALJ’s decision the final
decision of the Commissioner (AR 1-6). He subsequently filed this action.
III.
STANDARD OF REVIEW
The Court must affirm the determination of the Commissioner unless it is not supported
by substantial evidence. See 42 U.S.C. § 405(g). Substantial evidence does not mean a large or
considerable amount of evidence, but only “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 564-65, 108
S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); see also Richardson v. Parales, 402 U.S. 389, 401, 91
S.Ct. 1420, 28 L.Ed.2d 842 (1971); Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995). It has
been defined as less than a preponderance of evidence but more than a mere scintilla. See
Richardson, 402 U.S. at 401; Jesurum v. Secretary of the United States Dept. of Health and
Human Servs., 48 F.3d 114, 117 (3d Cir. 1995). Additionally, if the ALJ’s findings of fact are
supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g); Richardson, 402
U.S. at 390. A district court cannot conduct a de novo review of the Commissioner’s decision or
re-weigh evidence of record. Palmer v. Apfel, 995 F. Supp. 549, 552 (E.D.Pa. 1998); see also
Monsour Medical Center v. Heckler, 806 F.2d 1185, 90-91 (3d Cir. 1986) (“even where this
court acting de novo might have reached a different conclusion … so long as the agency’s
factfinding is supported by substantial evidence, reviewing courts lack power to reverse either
those findings or the reasonable regulatory interpretations that an agency manifests in the course
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of making such findings.”). To determine whether a finding is supported by substantial
evidence, however, the district court must review the record as a whole. See 5 U.S.C. § 706.
IV.
DISCUSSION
Title II of the Social Security Act provides for the payment of disability insurance
benefits to those who have contributed to the program and who have become so disabled that
they are unable to engage in any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A). Title
XVI of the Act establishes that SSI benefits are payable to those individuals who are similarly
disabled and whose income and resources fall below designated levels. 42 U.S.C. § 1382(a). A
person who does not have insured status under Title II may nevertheless receive benefits under
Title XVI. Compare 42 U.S.C. § 423(a)(1) with 42 U.S.C. § 1382(a). In order to be entitled to
DIB under Title II, a claimant must additionally establish that his disability existed before the
expiration of his insured status. 42 U.S.C. § 423(a), (c). The ALJ found that the Plaintiff met the
disability insured status requirements of the Act through March 31, 2009 (AR 23). SSI does not
have an insured status requirement.
A person is “disabled” within the meaning of the Social Security Act if he or she is
unable to “engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). The Commissioner uses a five-step evaluation process to determine when an
individual meets this definition. 20 C.F.R. §§ 404.1520; 416.920. The ALJ must determine: (1)
whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether the
claimant has a severe impairment or a combination of impairments that is severe; (3) whether the
medical evidence of the claimant’s impairment or combination of impairments meets or equals
the criteria listed in 20 C.F.R., Pt. 404, Subpt. P, Appx. 1; (4) whether the claimant’s
impairments prevent him from performing his past relevant work; and (5) if the claimant is
incapable of performing his past relevant work, whether he can perform any other work which
exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Barnhart v.
Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003). If the claimant is
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determined to be unable to resume previous employment, the burden shifts to the Commissioner
(Step 5) to prove that, given claimant’s mental or physical limitations, age, education, and work
experience, he or she is able to perform substantial gainful activity in jobs available in the
national economy. Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986).
The ALJ concluded that Plaintiff’s borderline intellectual functioning was a severe
impairment, but determined at step three that he did not meet a listing (AR 23-25). The ALJ
found that Plaintiff had the residual functional capacity to perform a full range of work at all
exertional levels, but needed unskilled work without production lines and minimal contact with
the public (AR 25). At the final step, the ALJ concluded that Plaintiff could perform the jobs
cited by the vocational expert at the administrative hearing (AR 28-29). The ALJ also
determined that Plaintiff’s statements concerning the intensity, persistence and limiting effects of
his symptoms were not entirely credible (AR 26). Again, we must affirm this determination
unless it is not supported by substantial evidence. See 42 U.S.C. § 405(g).
Plaintiff first argues that the ALJ conducted the proceedings in a biased manner, in that
she “displayed a predetermined belief that [P]laintiff could work and persisted in a line of
questions to this effect.” Plaintiff’s Brief p. 5. Due process requires that social security
claimants be afforded a full and fair hearing. Ventura, 55 F.3d at 902. Essential to a fair hearing
is the right to an unbiased judge who fulfills his or her duty to develop a full and fair record. Id.
An ALJ is presumed to be unbiased absent a specific showing for cause to disqualify. Schweiker
v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982); Maher v. Astrue, 2009 WL
3152467 at *4 (W.D.Pa. 2009). The burden to establish a disqualifying interest rests with the
party asserting bias. Schweiker, 456 U.S. at 196. A party asserting bias must show that the
behavior of the ALJ was “so extreme as to display clear inability to render fair judgment.”
Liteky v. United States, 510 U.S. 540, 551, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
Plaintiff takes issue with the ALJ asking him why he believed he could not perform
certain tasks, as well as “press[ing] Mr. Vitale on what types of jobs [P]laintiff could perform.”
Plaintiff’s Brief pp. 5-6. However, questions of this nature are entirely appropriate and relevant,
since the critical issue is whether a claimant can perform substantial gainful activity. 20 C.F.R.
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§§ 404.1505(a); 416.905(a). In this regard, the ALJ is required to assess a claimant’s residual
functional capacity (“RFC”), which is defined as “that which an individual is still able to do
despite the limitations caused by his or her impairment(s).” Burnett v. Comm’r of Soc. Sec.
Admin. 220 F.3d 112, 121 (3d Cir. 2000) (quoting Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d
Cir. 1999)); see also 20 C.F.R. §§ 404.1545(a); 416.945(a). The ALJ considers, inter alia, the
“descriptions of limitations by the claimant and others” in rendering this assessment. Fargnoli v.
Halter, 247 F.3d 34, 41 (3d Cir. 2001) (citing 20 C.F.R. § 404.1545(a)).
To the extent Plaintiff is claiming that the manner in which the ALJ conducted the
administrative hearing was biased, we reject this contention. Plaintiff cites to Ventura in support
of his request for a remand for a new hearing before a different ALJ. Plaintiff’s Brief p. 6. In
Ventura, the court found that the ALJ’s questioning of the claimant was coercive and
intimidating. Ventura, 55 F.3d at 903-04. The court further pointed to specific instances where
the ALJ repeatedly interfered with the admission of evidence, and blatantly intimidated the
claimant’s representative. Id. In reviewing the transcript in light of Ventura, it is clear that
Plaintiff’s claims of bias are not substantiated by the record.
Plaintiff further argues that the ALJ was biased because “without notice and an
opportunity to be heard, [she] accepted the findings and conclusions of an unfavorable decision
rendered on February 8, 2006 … .” Id. Although Plaintiff does not expand upon this argument,
the administrative record reflects that Plaintiff’s counsel herself forwarded the ALJ a copy of the
previous decision (AR 111). In so doing, she advised the ALJ: “While I did not represent
[Plaintiff] before Judge Pileggi, I believe Judge Pileggi’s decision was and is flawed. As
[Plaintiff’s] impairments are life-long, I believe Judge Pileggi should have granted benefits.”
(AR 111). His contention as to bias and lack of notice are meritless.
Plaintiff next argues that the ALJ “failed to consider” the vocational expert’s testimony
that there was a pace component to all jobs (AR 82-83). Plaintiff’s Brief p. 7. “Concentration,
persistence or pace refers to the ability to sustain focused attention and concentration sufficiently
long to permit the timely and appropriate completion of tasks commonly found in work settings.”
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(C)(3). Plaintiff appears to suggest that substantial
10
evidence supports his contention that he is precluded from working by virtue of an inability to
work at an adequate pace. We disagree.
The medical evidence does not reveal such an extreme limitation in this functional area.
Dr. Reilly found only “mild” signs of pace and coordination difficulties during testing, with few
signs of concentration or distraction difficulties (AR 427). Dr. DeJohn, Plaintiff’s treating
psychologist, found that Plaintiff was functioning “quite well” and did not appear significantly
impaired in any manner (AR 452). Dr. Golin, the state agency reviewing physician, concluded
that Plaintiff had only mild limitations with respect to concentration, persistence or pace (AR
440). Dr. Hillin, the consulting psychologist, found that Plaintiff worked better in an
environment where there were multiple workers to help him as needed, and recommended that
he work in the food service or cleaning industry (AR 466-67).
Moreover, Plaintiff’s employment history also does not support the conclusion that he
was unable to complete tasks due to difficulties with pace. Plaintiff was able to work for four
years as a cleaner at Gannon University, and reportedly wanted to work full-time at that job (AR
195). While employed as a dishwasher at a restaurant, Plaintiff was able to remember the
majority of his duties, and was able to keep up a “good pace” (AR 320; 322; 326; 330). Although
Plaintiff had difficulty with the cleaning aspect of the job because he talked to his job coach, it
was noted that he “had no trouble with the other areas of his work” (AR 328). During his
employment at the convenience store, Plaintiff’s employment specialist reported that he “moved
from task to task without any problems, and didn’t need help deciding where to go or what to do
next” (AR 355). Plaintiff’s performance improved “each day he worked” and he was able to
complete tasks with “very little prompting” (AR 355; 370).
While Plaintiff may have had some difficulty performing multiple tasks and would
become socially distracted, the ALJ accommodated any deficiencies in these areas by limiting
him to unskilled jobs involving no more than one or two step instructions, not involving a
production like pace, and involving only minimal contact with the public (AR 25, 70). The
vocational expert testified that he could work as a dishwasher, assembler and laundry folder,
notwithstanding these limitations (AR 28-29; 79). Mr. Vitale opined that Plaintiff was not
11
precluded from working (AR 52-53). He felt Plaintiff would function best in an isolated setting
(AR 52-53).
In sum, we find substantial evidence supports the ALJ’s conclusion with respect to the
Plaintiff’s functional abilities relative to concentration, persistence and pace.
Plaintiff next argues that the ALJ’s hypothetical propounded to the vocational expert was
insufficient because it did not contain all of his impairments. Objections to the adequacy of the
hypothetical questions posed to the vocational expert “often boil down to attacks on the RFC
assessment itself.” Rutherford v. Barnhart, 399 F.3d 546, 554 n.8 (3d Cir.2005). RFC
assessments and hypothetical questions must be a reflection of all of a claimant’s credibly
established impairments. Id. at 554 (“the ALJ must accurately convey to the vocational expert
all of a claimant’s credibly established limitations.”). The ALJ is not, however, required to
submit to the vocational expert every impairment alleged by the claimant. Id. “Limitations that
are medically supported but are also contradicted by other evidence in the record may or may not
be found credible—the ALJ can choose to credit portions of the existing evidence but ‘cannot
reject evidence for no reason or for the wrong reason[.]’” Id. (quoting Mason v. Shalala, 994
F.2d 1058, 1066 (3d Cir. 1993).
Plaintiff argues that the ALJ’s hypothetical failed to account for his symptoms associated
with his Asperger’s Disorder, Attention Deficit Hyperactivity Disorder, and Skin Excoriations.
Plaintiff’s Brief p. 8. Specifically, Plaintiff claims that the ALJ did not account for his difficulty
in “reading social cues,” his compulsive need to scratch, and his claimed inability to focus,
remember and remain on task. Id. A review of the record, however, reveals that the ALJ did
include limitations in her hypothetical question that encompassed some of the Plaintiff’s claimed
limitations. For example, while the ALJ did not phrase the hypothetical in the fashion he
suggests, her hypothetical did limit Plaintiff to unskilled work, which accommodated his alleged
difficulties with regard to concentration, persistence and pace (AR 70, 76).4 See e.g., McDonald
v. Astrue, 293 Fed. Appx. 941, 946-47 (3d Cir. 2008) (ALJ accounted for moderate limitations in
4
“Unskilled work” is defined in the regulations as work “which needs little or no judgment to do simple duties that
can be learned on the job in a short period of time.” 20 C.F.R. §§ 404.1568; 416.968.
12
concentration, persistence and pace in hypothetical by restricting the claimant to simple, routine
tasks);5 Douglas v. Astrue, 2011 WL 482501 at *5 (E.D.Pa. 2011) (“The ALJ’s hypothetical
limiting [claimant] to unskilled work adequately accounted for his moderate limitations in
concentration, persistence and pace.”). Accordingly, the ALJ’s hypothetical “accurately
conveyed” Plaintiff’s limitations in this area.
We reject Plaintiff’s contention that his alleged difficulty in reading social cues precluded
him from working and therefore, this limitation should have been included in the hypothetical
question posed to the expert. The ALJ found no evidence of such severe problems with social
functioning that would preclude Plaintiff from working (AR 25), and Plaintiff has failed to point
to any evidence supporting this contention. Plaintiff’s evidence demonstrates that he was
socially distracted and/or inappropriately interacted with customers (AR 345; 465). The ALJ’s
hypothetical restricted Plaintiff to work involving minimal contact with the public in order to
account for these difficulties (AR 70; 76).
With respect to Plaintiff’s skin excoriations, the ALJ did not err in failing to include any
limitations related to this condition in her hypothetical. The ALJ observed that Plaintiff’s skin
excoriations had not prevented him from performing his past work (AR 27). She further noted
that his last treatment for this condition was in February 2007, and treatment records reflected
that his condition was stable and he was treated with a prescribed cream (AR 27). Finally, she
noted that Plaintiff was only on a six month follow up schedule for treatment (AR 27). She
concluded that Plaintiff’s skin condition did not impose any significant functional limitations
(AR 27). All of the ALJ’s findings are supported by substantial evidence in the record.
V.
CONCLUSION
For the reasons discussed above, the Plaintiff’s motion will be denied and the
Commissioner’s motion will be granted. An appropriate Order follows.
5
Unskilled work is consistent with simple, routine tasks. Bovell v. Barnhart, 2006 WL 1620178 at *3 (E.D.Pa.
2006).
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ROBERT D. MALINOWSKI,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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Civil Action No. 11-115 Erie
ORDER
AND NOW, this 26th day of July, 2012, and for the reasons set forth in the accompanying
Memorandum Opinion,
IT IS HEREBY ORDERED that the Plaintiff’s Motion for Summary Judgment [ECF No.
8] is DENIED, and the Defendant’s Motion for Summary Judgment [ECF No. 10] is
GRANTED. JUDGMENT is hereby entered in favor of Defendant, Michael J. Astrue,
Commissioner of Social Security, and against Plaintiff, Robert D. Malinowski.
The clerk is directed to mark the case closed.
s/ Sean J. McLaughlin
United States District Judge
cm:
All parties of record
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